Ofisi v. BNP Paribas, S.A., 77 F.4th 667 (D.C. Cir. 2023) was decided by the United States Court of Appeals for the District of Columbia Circuit on July 7, 2023 (No. 22-7083). The D.C. Circuit affirmed dismissal on all counts under Rule 12(b)(6). A bank's admitted, deliberate sanctions evasion on behalf of a designated state sponsor of terrorism is not, standing alone, conspiracy with or assistance to the terrorists that state harbors. Plaintiffs must plead that the specific funds reached the attackers and were a substantial factor in the attack — an evidentiary burden that the interposition of a sovereign intermediary makes markedly harder to carry.
The question before the court
Can a foreign bank that knowingly evaded U.S. sanctions and served as a state sponsor of terrorism's gateway to the dollar system be held secondarily liable to victims of an attack that state's guests later carried out?
The governing rule
The Anti-Terrorism Act, 18 U.S.C. § 2333(a), gives U.S. nationals injured by an act of international terrorism a private damages action, requiring injury to a U.S. national, an act of international terrorism, and proximate causation. Secondary liability is measured by Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), which the Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222, § 2(a)(5), 130 Stat. 852 (2016), identified as the proper framework, and which the Supreme Court applied in Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023). Conspiracy requires an agreement, an unlawful overt act, and that the overt act further the common scheme; aiding and abetting requires general awareness of one's role in the overall illegal activity plus knowing and substantial assistance, assessed against Halberstam's six factors. The Alien Tort Statute, 28 U.S.C. § 1350, is jurisdictional only and, under Jesner v. Arab Bank, PLC, 584 U.S. 241 (2018), does not reach foreign corporations. Section 2332d reaches only a 'United States person' as defined in 18 U.S.C. § 2332d(b)(2).
How the court applied it
The plaintiffs' theory ran in a chain: BNP Paribas broke the 1997 embargo to become Sudan's sole European correspondent bank; Sudan's banking system included Al-Shamal, capitalized in part by bin Laden and holding al-Qaeda accounts; al-Qaeda therefore had the capital to bomb the embassies. The D.C. Circuit cut the chain at every link. On conspiracy, the panel followed Bernhardt v. Islamic Republic of Iran, 47 F.4th 856 (D.C. Cir. 2022): the bank's aim was sanctions evasion and profit, al-Qaeda's was mass killing, and no overt act of bombing furthered the bank's objective — the plaintiffs' own complaint conceded BNPP did not share al-Qaeda's desire to kill. The claim also lacked an underlying actionable tort, because sanctions violations carry no private right of action. On aiding and abetting, the plaintiffs failed the general-awareness element: nothing plausibly alleged BNPP knew of Al-Shamal's ties to al-Qaeda, which were not widely reported until after the bombings. All six Halberstam assistance factors ran against them. The ATS claim failed outright under Jesner because BNPP is a French corporation, and neither its New York branch, its 2014 guilty plea, nor § 2332d(b)(2) made it a U.S. person. Finally, the ATA claims failed for want of proximate causation under the panel's own precedent in Owens v. BNP Paribas, S.A., 897 F.3d 266 (D.C. Cir. 2018), on nearly identical allegations: money routed to a sovereign with many legitimate programs to fund is not money routed to a terrorist.
What the court concluded
The D.C. Circuit affirmed dismissal on all counts under Rule 12(b)(6). A bank's admitted, deliberate sanctions evasion on behalf of a designated state sponsor of terrorism is not, standing alone, conspiracy with or assistance to the terrorists that state harbors. Plaintiffs must plead that the specific funds reached the attackers and were a substantial factor in the attack — an evidentiary burden that the interposition of a sovereign intermediary makes markedly harder to carry.
From the opinion
- “Al-Qaeda's objective was to blow up U.S. embassies in Africa.” — Common law conspiracy analysis, contrasted with the bank's objective of sanctions evasion and concluding, per Bernhardt v. Islamic Republic of Iran, that the two goals are orthogonal
- “Appellants simply do not plausibly allege that BNPP was generally aware of any role it allegedly played in the U.S. embassy bombings” — Aiding and abetting analysis, addressing Halberstam's second element of general awareness
- “Plaintiffs' complaint fails to plausibly allege that any currency processed by BNPP for Sudan was either in fact sent to al Qaeda” — Disposition of the ATA claim, the panel quoting its own earlier decision in Owens v. BNP Paribas, S.A., 897 F.3d at 276
Why it matters for cyber conflict
Ofisi sets the pleading floor for anyone hoping to reach the financial institutions that move money to a state-sponsored cyber unit: it is not enough that a bank knowingly served a sanctioned regime, since the plaintiff must trace the funds to the operators and show they substantially caused the intrusion. Where a state treasury sits between the bank and the hackers, that trace is where most cases will die.
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